TMI Blog2003 (3) TMI 166X X X X Extracts X X X X X X X X Extracts X X X X ..... t the time of clearance of the motor vehicles as a saloon car in terms of provisions of Section 11B of the Central Excise Salt Act, 1944. 3.In respect of saloon cars cleared from the appellants' factory and which were subsequently regd. for use solely as a taxi, the appellant filed its refund claim within the time limit as provided under Section 11B for refund of duty to the extent of aforesaid exemptions. Along with refund applications they filed certificates issued by the said transport authorities certifying that the saloon cars in question were regd. for use as a taxi; the taxi registration certificate from RTO; taxi owners' names and also the cheque numbers and dates showing refund of the excess amount of duty paid by them to the taxi owners. Money receipts by the taxi owners as regards receipt of the refund claims and the bank certificates as regards encashment of the cheques were filed by the appellants subsequently after getting the same from the taxi owners and from the banks. 4.The said refund claims were sanctioned by the Asstt. Commissioner vide his various orders and there is no dispute about the same. The dispute in the present appeals relates to the interest cl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... said saloon car from the factory of manufacturer and the manufacturer had not collected from the person in whose name such saloon car has been regd. as a taxi and has refunded to such person the amount equivalent to such further exemption of duty. As such the appellant submits that by filing of certificates issued by the State Transport Authorities, the cheque numbers and dates relating to the refunds of the amounts to the taxi owners they have fulfilled the conditions of the notifications and their refund claims filed within a period of six months were complete in all respects. Their contention is that the provisions of Section 11BB provided for payment of interest from the date of filing of refund claim and there is no such provision for extending the said date of filing of refund application to the date when the cheques were actually encashed by the taxi owners. Shri Bagaria submits that there is no dispute about the fact that all the cheques issued by the appellants were subsequently encashed by the taxi owners in which case it will relate back to the date of issuance of the cheques by the appellant. In this connection he relies upon the Madras High Court's decision in the cas ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the condition subsequent that the cheque must be met on presentation, the date of payment, if the cheque is duly met, is the date when the cheque was posted." In the case before us none of the cheques has been dishonoured on presentation and payment cannot, therefore, be said to have been defeated by the happening of the condition subsequent, namely, dishonour by non-payment and that being so there can be no question, therefore, that the assessee did not receive payment by the receipt of the cheques. The position, therefore, is that in one view of the matter there was, in the circumstances of this case, an implied agreement under which the cheques were accepted unconditionally as payment and on another view, even if the cheques were taken conditionally, the cheques not having been dishonoured but having been cashed, the payment related back to the dates of the receipt of the cheques and in law the dates of payments were the dates of the delivery of the cheques." 8.From the above portion of the judgment reproduced it becomes clear that the cheques having not been dishonoured subsequently, the payment would relate back to the date of receipt of the cheques and in the eyes of law ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ime taken in delivery of cheque to the person concerned. Hence, a harmonious construction of the provisions would require that refund application be made within 6 months from the date of payment of duty and that the cheque is issued to the person concerned before the refund application is made. However, evidence regarding receipt of the cheque by the person concerned should be produced before the refund claim can be sanctioned by the Assistant Collector. Trade and field formation may please be4. informed accordingly." The above circular makes it clear that the refund application has to be filed within a period of six months, after the cheques are issued to the concerned persons and there is nothing in the said circular to suggest to evidence of encashment of cheques by the taxi owner. 10.To the similar effect is another circular (being No. 169/3/96-CX., dated 23-1-96) issued by the Board in respect of the same Notification No. 64/93. In the said circular the Board has observed that some officers are insisting on proof of encashment of cheques issued by the manufacturers to persons in whose names the saloon cars are registered as taxis. This involves cumbersome correspondence ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e position was also clarified by the Ministry vide its Circular No. 130/41/95-CX., dated 30-5-95 wherein it was clarified that the period of three months in terms of Section 11BB shall be counted from the date following the date of receipt of the refund application up to the date of despatch of cheque for refund (emphasis provided). As such we are of the view that the appellants are entitled to the interest on the refund claim sanctioned by the Asstt. Commissioner till the issuance of the cheque to them. 13.The third issue is as regards payment of interest on delayed interest. The appellants have contended that under the provisions of Section 11BB, the department is under a statutory liability to pay interest for the period of delay in refund of the amount of duty. That such interest is payable by the department simultaneously with the refund of duty. Thus the total amount payable by the department has got two components, namely duty amount and interest amount. If the department only refunds one component i.e. duty amount and refund the second component i.e. interest after the further delay, it is liable to pay interest on the aforesaid second component. 13.1The aforesaid posit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... under the Central Excise Act, 1944 for payment of interest. It is a well settled proposition that Tribunal being a creature of the Act can not go beyond the law laid down by the Act. Inasmuch as there was no such provision for payment of interest prior to the date of insertion of Section 11BB we find no merits in the above contention of the appellants and reject the same. 16.Before we part we deal with another small aspect of the matter. Commissioner (Appeals) in his impugned order has observed that he is only dealing with the rejection of interest of Rs. 1,91,20,068/- and is not dealing with the partial rejection of the interest claim of Rs. 1,26,35,979/- inasmuch as the same was not mentioned in the appeal memo. The appellants have contended that they had challenged the entire order dated 17-8-99 and merely because the amount was wrongly mentioned, the scope of the appeal could not be curtailed. We agree with the above contention of the appellant and treat the present appeal as having been filed against the rejection of interest amount of Rs. 1,91,20,068/- as also against the partial rejection of interest claim of Rs. 1,26,35,979/-. 17.All the disputed issues have been answer ..... X X X X Extracts X X X X X X X X Extracts X X X X
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